Elfes Case (1957)
6 BVerfGE 32

This case is published in the German Law Archive courtesy of:

Translated German Cases and MaterialsUnder the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz

Copyright: Donald P Kommers

[The complainant, an active member of the Christian Democratic Union (CDU), was elected to the North Rhine-Westphalia parliament in 1947. He was also a leading spokesman of a radical right-wing organisation vehemently opposed to the Federal Republic’s policies toward military defence and German reunification. He had participated in a number of conferences and demonstrations at home and abroad in which he sharply criticised these policies and for which he was refused a passport to travel abroad. Claiming that the state had violated his freedom of movement under Article II, he filed a constitutional complaint against judicial decisions sustaining the denial of his passport.]

Judgment of the First Senate….

The constitutional complaint is rejected.

II. I. The complainant contends that section 7 (I) of the Passport Act of March 4, 1952, is null and void because the right to travel abroad, allegedly based on Article II of the Basic Law, is impermissibly limited. That is not so. The Passport Act provision reads: “A passport must be refused if facts justify the supposition that (a) the applicant threatens the internal or external security or other vital interests of the Federal Republic of Germany or one of theGerman states. . .”

Article II (I) [of the Basic Law] guarantees freedom of movement “throughout the federal territory.” This text clearly does not secure a fundamental right to travel outside the federal territory. What is more, the original history of the provision does not provide any support for such an interpretation….

The fundamental right to freedom of movement may be limited only by the express provisions of Article II(2). Article II(2) states: “This right may be restricted only by or pursuant to a law … or in which such restriction is necessary to avert an imminent danger to the existence of the free democratic basic order of the federation or a state, to combat the danger of epidemics, to deal with natural disasters or particularly grave accidents, to protect young people from neglect, or to prevent crime?” In providing for these limitations, the framers obviously had in mind freedom of movement within the country; [Article II (I)] makes no mention of traditional and relevant limitations on travel outside the country. Many countries (including free democracies) have long denied passports for reasons of state security. Similar restrictions, enforced in Germany since World War I, were carried over essentially unaltered into the Passport Act of 1952. If the framers had desired to incorporate a fundamental right to foreign travel into Article II, they would not … have considered the long historical practice of withholding passports on the ground of state security. They clearly did not intend to guarantee freedom to travel abroad in Article II….Yet, freedom to travel abroad is not without some degree of constitutional protection as derivative of the basic right to general freedom of action….

2. In its calling of July 20, 1954 [the Investment Aid I case], the Federal Constitutional Court did not decide whether the free development of one’s personality includes freedom of action in the widest sense possible, or whether Article 2 (I)is limited to the protection of a minimum amount of this right to freedom of action without which an individual would be unable to develop himself as a spiritual-moral person.

(a) The term “free development of personality” cannot simply mean development within that central area of personality that essentially defines a human person as a spiritual-moral being [i.e., theKrnbereichstheorie], for it is inconceivable how development within this core area could offend the moral code, the rights of others, or even the constitutional order of a free democracy. Rather, the limitations imposed on the individual as a member of the political community show that the freedom of action [implicit] in Article 2 (I) is to be broadly construed.

To be sure, the solemn formulation of Article 2 (I) was an inducement to see it in the light of Article Iand to infer therefrom that its purpose was to embody the Basic Law’s image of man. Yet nothing other is suggested than that Article I is a fundamental constitutional principle which, like all the provisions of the Basic Law, informs the meaning Of Article 2 (I). Legally speaking, it represents a separate, individual basic right that guarantees a person’s general right to freedom of action. Linguistic rather than legal considerations prompted the framers to substitute the current language for the original proposal, which read, “Every person is free to do or not to do what he wishes” [citing the original records]. Apparently, the fact that the constitutional order is also mentioned in the second half of the sentence among the permissible limitations on the citizen’s development of personality contributed to the theory that Article 2 (I) intended to protect only a limited core area of personality. In the effort to uniformly interpret this term [i.e., ‘constitutional order’], which appears in other provisions of the Constitution, the constitutional order was viewed as a more restrictive concept than the [concept of a] legal order that conforms to the Constitution. Thus one felt compelled to conclude that the Constitution should protect only a core sphere of personality, and not one’s right to freedom of action.

In addition to the general right to freedom of action secured by Article 2 (I), the Basic Law [employs] specific fundamental rights to protect man’s self-determination in certain areas of life that were historically subject to encroachment by public authority. These constitutional provisions contain graduated reservation clauses that limit the extent to which [the legislature] may encroach upon a given basic right. The individual may invoke Article 2 (I) in the face of an encroachment upon his freedom by public authority to the extent that fundamental rights do not [specifically] protect such special areas of life. There was no need for a [general] reservation clause here because the extent to which encroachments are possible by the state is easily ascertained from the restriction the constitutional order imposes upon the development of personality…

[The text omitted here is a complicated discussion of constitutional order within the meaning of Article 2 (I). Drawing on original history, the Constitutional Court found that, as used within the context of Article 2, “constitutional order” refers to the “general legal order subject to the substantive and procedural provisions of the Constitution.” Inother contexts (e.g., Article 9), noted the court, the concept “canbe limited to certain elementary principles of the Constitution.” The general right to freedom of action is thus limited not only by the Basic Law itself but also “by every procedural and substantive norm that conforms to the Constitution.” The court then proceeded to meet the objection of legal scholars that such a broad limitation would turn the personality clause into an empty vessel.]

(c)… They overlook the fact that legislative power is subject to more stringent constitutional restrictions than under the Weimar Constitution of 1919… [T]he legislature [at that time] could modify or alter constitutional rights [at will]… The Basic Law, on the other hand, erected a value-oriented order that limits public authority. This order guarantees the self-determination, and dignity of man within the political community. The highest principles of this order of values are protected against constitutional change…. Laws are not constitutional merely because they have been passed in conformity with procedural provisions. [This refers to the Weimar Constitution’s adherence to the positivistic theory of constitutional law. See the section in Chapter I on structures and principles of the Basic Law for a discussion of Begriffsjurisprudenz.] They must be substantively compatible with the highest values of a free and democratic order – i.e., the constitutional order of values – and must also conform to unwritten fundamental constitutional principles as wed as the fundamental decisions of the Basic Law, in particular the principles of the rule of law and the social welfare state. Above all, laws must not violate a person’s dignity, which represents the highest value of the Basic Law; nor may they restrict a person’s spiritual, political, or economic freedom in a way that would erode the essence of [personhood]. This follows from the constitutional protection afforded to each citizen’s sphere of private development; that is, that ultimately inviolable area of human freedom insulated against any intrusion by public authority…

3. Even if the right to leave the country does not specifically belong to the concept of freedom of movement as protected by Article II, it nevertheless is guaranteed by Article 2 (I), within the limits of the constitutional order (i.e., the legal order that conforms to the Constitution) as a manifestation of the general right to freedom of action. Whether or not the passport law is part of the constitutional order as defined here remains to be decided. The answer is yes.

(a) The Passport Act requires all Germans crossing a foreign border to have a passport – in itself a substantial formal limitation on foreign, travel. Because the law, however, by unanimous interpretation confers a legal right to a passport, it preserves the principle of free foreign travel. It does so by permitting the denial of a passport only under specified conditions. Thus the act is cognizant of the fundamental requirements of Article 2 (I).

(b) Section 7 of the Passport Act clearly sets forth the grounds for denying a passport. The provision at issue here is unobjectionable to the extent that it permits denial of a passport on the basis of an internal or external threat to the security of the Federal Republic of Germany. Objections might be raised to the extent that [the provision] allows the apprehension of a threat to “other vital interests” to suffice [for the denial of a passport]. The application of such a substantively indeterminate standard could, of course, lead to an abuse of discretion on the part of passport authorities…. [But] that has not occurred here.

[The court went on to reject the constitutional complaint. It found fault with the passport agency’s original refusal to support its denial of a passport with reasons, but sustained its decision because the agency in a subsequent administrative hearing finally offered reasons for the denial and gave the complainant an opportunity to be heard. In considering the scope of review of the decision below, the Constitutional Court declared that its role was not to review the facts de novo but rather to determine whether the facts were sufficient to justify the conclusion that the complainant would threaten “other vital interests’ of the Federal Republic. The court also found that the Federal Administrative Court had properly harmonised those terms with the spirit of the Basic Law.]